0120053223
02-15-2007
Alvin Suarez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alvin Suarez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120053223
Hearing No. 310-2004-0416X
Agency No. 1G761003000
DECISION1
INTRODUCTION
On March 28, 2005, complainant filed an appeal from the agency's February
24, 2005, final order concerning his equal employment opportunity (EEO)
complaint alleging employment discrimination in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The appeal is deemed timely and is decided
pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the
Commission affirms the agency's final order.
BACKGROUND
During the relevant time, complainant applied for a position with the
agency,2 and in 1999, his name appeared on the register of eligibles for
the position of Flat Sorter Machine (FSM) Operator in Amarillo, Texas.
The agency interviewed complainant and hired him in August 1999, pending
a physical examination and drug test.
The record reveals that the FSM Operator position consists of three
functions that are rotated throughout the day, namely, keying a scheme
for approximately 30 minutes, loading for 15 minutes, and sweeping for
15 minutes. The loading and sweeping functions consist of bending down
and lifting full trays of mail located approximately one foot from the
floor and placing them on the dollies and general purpose containers
(GPC). FSM Operators also pull full trays from the belts and load
them onto GPC's and replace them with empty trays for mail. Former FSM
Operators' testimony reflected that the trays average between 35 to 45
pounds, with some weighing over 50 pounds, depending on the contents.
Functional requirements for the position require lifting up to 70 pounds.
In 1999, complainant attended a physical examination conducted by an
agency physician (Physician-1), who noted significant findings of 20%
service-connected disability, and requested medical records relating
complainant's back condition. Medical records from 1997 indicated that
complainant complained of low back pain for nine years and right leg pain
with numbness reaching to toes for 1 year, and that he had very limited
lumbar flexion. In 1998, complainant's service-connected disability
rating was increased from 10% to 20%, and he was found to have moderate
intervertebral disk syndrome, with no neurological dysfunction.3 Then,
in April 1999, complainant was seen for increasing lower back pain with
no relief since 1997. He was prescribed percocet for pain and restricted
from lifting or performing strenuous activity. Progress notes dated
August 16, 1999, indicated that complainant's condition showed some
improvement.
The agency forwarded complainant's medical information to the Southwest
Area Medical Director (AMD). The AMD identified complainant as "high
risk" for incurring a job-related injury or illness. Specifically,
based on the FSM Operator requirements of heavy lifting as well as
bending, stooping, and twisting while carrying full trays of mail, the
AMD believed complainant was at a high risk of suffering an aggravation
of his back injury within weeks or at the most months because, as he
testified, twisting or turning while carrying weight is the worst thing
for those with herniated disk condition. He further testified that he
was unaware of any accommodation that would eliminate the risk of injury
to complainant.
By letter dated August 30, 1999, the Plant Manger informed complainant
that he was found medically unsuitable for the FSM Operator position
because his condition was "not compatible with the strenuous activities
required for this position, which includes heavy lifting, pushing,
pulling, repetitive stretching and reaching." Complainant appealed the
agency's determination and submitted documentation from the VA dated
August 16, 1999, which indicated an inability to "lift, carry, push, pull
or climb with loads weighing more than 50 pounds repeatedly due to his
industrial impairment associated with his service-connected disability."
This documentation included a letter from the VA's Disability Analyst,
a doctor of education, stating that complainant's impairments "do not
impair his ability to perform reasonably heavy and strenuous physical
activity." The AMD found complainant's submission insufficient,
noting that such information must come from a physician, preferably a
board-certified orthopedist. On October 18, 1999, the agency upheld
its finding that complainant was medically unsuitable for the position
of FSM Operator.
Complainant filed an EEO complaint alleging that he was discriminated
against on the basis of disability (back disorder) when he was refused
employment. At the conclusion of the agency's investigation, the agency
provided complainant with a copy of the report of investigation and notice
of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant requested a hearing, and the case was assigned to
an AJ. Despite the objection of complainant, the AJ issued a decision
without a hearing, finding no discrimination. The agency issued a final
order implementing the AJ's decision, and complainant appealed that
order to the Commission in Suarez v. United States Postal Service, EEOC
Appeal No. 01A32626 (July 29, 2004). Therein, the Commission vacated
the agency's order and remanded the case for a hearing because genuine
issues of material fact existed. Id.
The AJ held a hearing on January 19, 2005 and issued a decision on
February 7, 2005. The AJ found that complainant failed to prove that
he is disabled under the Rehabilitation Act in that he could not show
that the agency regarded him as substantially limited in the major life
activity of working.4 The AJ then assumed arguendo that complainant
established a prima facie case of disability discrimination, and found
that the agency articulated a legitimate nondiscriminatory reason for
its actions. Specifically, the agency asserted that the complainant
was at high risk of injury within a short period of time, based on
his history of long-term back problems, as well as radiclopathy to the
right leg. The AJ then determined that complainant failed to show that
the agency's reason was pretext, since complainant had a 50 pound lifting
restriction, and one of the essential job functions was lifting 70 pounds.
She concluded that complainant failed to prove discrimination. The agency
subsequently issued a final order adopting the AJ's decision.
On appeal, complainant contends, among other things, that the AJ erred in
finding that a tray of mail weighs more than 50 pounds where testimony
reflected that most trays weigh between 35 to 40 pounds. Moreover, he
asserts that the 70 pound functional requirement is an artificial barrier
that the agency should have waived for him, since it is not an essential
function of the position, and that the AJ inappropriately focused on
twisting and turning while lifting 35 to 45 pounds. He also maintains
that the AMD and AJ used medical evidence that was more than six months
old in making their decisions in violation of the agency's guidelines,
and that they both used the Disability Analyst's evaluation to establish
his lifting restriction, but refused to accept it for all other purposes.
Finally, he asserts that the agency failed to conduct an individualized
assessment of his condition, and that the ADM had never met nor discussed
the position with him.
ANALYSIS AND FINDINGS
Pursuant to 29 C.F.R. � 1614.405(a), all post-hearing factual findings by
an AJ will be upheld if supported by substantial evidence in the record.
Substantial evidence is defined as "such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion." Universal
Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 477 (1951)
(citation omitted). A finding regarding whether or not discriminatory
intent existed is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982). An AJ's conclusions of law are subject to a
de novo standard of review, whether or not a hearing was held.
An individual with a disability is one who: (1) has a physical or mental
impairment that substantially limits one or more major life activities;
(2) has record of such impairment; or (3) is regarded as having such
an impairment. See 29 C.F.R. � 1630.2(g)(1)-(3). Major life activities
include functions such as caring for one's self, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and working.
29 C.F.R. � 1630.2(i).
In the present case, we assume without finding, for the purposes of
analysis only, that complainant is an individual with a disability as
alleged in his complaint.5 In addition, we find that complainant was
"qualified" for the FSM Operator position, since the record indicates
that his name was placed in the list of eligible candidates and he was
selected for pre-employment processing. The only bar to his employment
was the agency's perception that he was unsuitable because of his back
problems. Accordingly, we find that complainant is a "qualified individual
with a disability" under the Rehabilitation Act.
In order to exclude an individual on the basis of possible future injury,
the agency bears the burden of showing there is a significant risk, i.e.,
high probability of substantial harm. A speculative or remote risk is
insufficient. The agency must show more than that an individual with
a disability seeking employment stands some slightly increased risk of
harm. Perez v. United States Postal Service, EEOC Appeal No. 07A20117
(July 23, 2003), request for reconsideration denied, EEOC Request
No. 05A31197 (September 25, 2003). Moreover, such a finding must be
based on an individualized assessment of the individual that takes into
account: (1) the duration of the risk, (2) the nature and severity of the
potential harm, (3) the likelihood that the potential harm will occur,
and (4) the imminence of the potential harm. Interpretive Guidance on
Title I of the Americans with Disabilities Act, Appendix to 29 C.F.R. �
1630.2(r). A determination of significant risk cannot be based merely on
an employer's subjective evaluation. Rather the agency must gather, and
base its decision on, substantial information regarding the individual's
work and medical histories. McManaway v. United States Postal Service,
EEOC Appeal 01993233 (August 23, 2002).
The record shows that the agency made its decision to find complainant
unsuitable for the position based upon the AMD's medical assessment
which found complainant at "high risk" for injury. The AMD based his
findings on his belief that, due to complainant's history of long-term
back problems, as well as radiclopathy to the right leg, complainant
could not perform the FSM Operator requirements of heavy lifting as
well as bending, stooping, and twisting while carrying full trays of
mail. Complainant's medical documentation indicated that complainant
sought treatment for increasing back pain, was prescribed medications,
and was restricted to resting and no lifting in April 1999. In this
regard, the AJ found that his medical documentation indicated that his
back pain increased with lifting heavier objects. Moreover, the record
reflects that one of the functional requirements for the position is the
ability to lift 70 pounds. Documentation from the VA dated August 16,
1999, submitted by complainant indicated that complainant did not have
the ability to "lift, carry, push, pull or climb with loads weighing more
than 50 pounds repeatedly due to his industrial impairment associated
with his service-connected disability." In addition, even if the agency
accepted the finding of the VA's Disability Analyst, who is not a medical
doctor, that complainant's impairments "do not impair his ability to
perform reasonably heavy and strenuous physical activity," complainant
has failed to submit evidence that he could in fact lift 70 pounds.
Despite complainant's assertions that 70 pound functional requirement is
an artificial barrier, substantial evidence supports the AJ's finding that
some trays weigh over 50 pounds, a weight which surpasses complainant's
lifting restrictions. Notwithstanding complainant's argument that the AMD
never examined or discussed the position with him, the record reveals that
the AMD utilized medical documentation based on timely medical assessment
provided by complainant to reach his conclusion that complainant was a
"high risk" for injury. Having carefully considered the evidence of
record, the Commission finds that the agency has met its burden of
showing a high probability of substantial harm.6 Since the Commission
finds that the agency proved that complainant posed a sufficient threat
to himself or others, we conclude that the agency's denial of employment
to the complainant was not a violation of the Rehabilitation Act.
CONCLUSION
Therefore, after a careful review of the record, including complainant's
contentions on appeal, the agency's response, and arguments and evidence
not specifically addressed in this decision, we affirm the agency's order,
adopting the AJ's finding of no discrimination.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the
policies, practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as the
defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
___2-15-07_______________
Date
1 Due to a new data system, this case has been redesignated with the
above referenced appeal number.
2 During the 1990s, complainant worked in various jobs, including postions
as a fireman, roofer, warehouse clerk, medical diagnostic supervisor,
and janitorial franchise owner.
3 Veterans Administration (VA) medical documentation dated October 22,
1998, states that complainant is "able to squat only if holding onto
a table. Range of Motion was 60 degrees forward flexion, 20 degrees
extension, and 30 degrees lateral flexion. Diagnosis was nonspecific
musculoligamentous strain of the low back, chronic, moderately severe."
4 See Brown v. United States Postal Service, EEOC Appeal No. 01A45134
(June 1, 2006)(finding that, since the agency regarded complainant as
being unsuitable to perform the duties of a Mail Processor position
pursuant to a contract physician's assessment, the agency regarded
complainant as having an impairment which significantly restricted him
from performing the class of manual labor jobs); Gaynor v. United States
Postal Service, EEOC Appeal No. 01A33909 (June 1, 2006).
5 We note that whether the agency offered complainant a position in
November 1999 in the Clerk craft, specifically as a Distribution Clerk,
need not be considered herein since we are assuming that complainant
is an individual with a disability for purposes of analysis only.
We further note that complainant testified that he had no recollection
of receiving the aforesaid letter, but the investigative file contains
a note from complainant dated June 26, 1999, stating "I would like to
decline this position of distribution clerk. Please keep my name on
the register." Although the AJ found that complainant was offered the
position in November 1999, complainant declined the offer on June 26,
1999, such that a November 1999 offer is not possible.
6 Although complainant asserts that the agency could have waived the
requirement that he lift 70 pounds, the record indicates that the
FSM Operator position requires rapid and heavy lifting, bending and
stooping.
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0120053223
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120053223
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